Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. Concord Career College

United States District Court, W.D. Tennessee, Western Division

February 1, 2018

NATHANIEL JOHNSON, Plaintiff,
v.
CONCORD CAREER COLLEGE, TOMMY STEWART, President of Campus, JAMI FRAZIER, Vice President of Student Affairs, MICHAEL CLEVELAND, Director of Clinical Education, LORI SPENCER, Academic Dean, and WINSTON GRANVILLE, Program Director, Defendant.

          REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION TO AMEND AND DEFENDANT CONCORDE CAREER COLLEGES, INC., TOMMY STEWART, JAMI FRAZIER, AND MICHAEL CLEVELAND'S MOTION TO DISMISS

          CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendants' Concorde Career Colleges, Inc. (“Concord College”), Tommy Stewart, Jami Frazier, and Michael Cleveland's (collectively “Moving Defendants”)[1]Motion to Dismiss (Docket Entry “D.E.” #21) and Plaintiff Nathaniel Johnson's pro se Request for Leave to Amend Civil Complaint (“Motion to Amend”) (D.E. #28). The instant motions were referred to the United States Magistrate Judge for Report and Recommendation pursuant to 28 U.S.C. 636(c), Rule 73 of the Federal Rules of Civil Procedure, and Rule 72.1 of the Local Rules. For the reasons set forth herein, it is RECOMMENDED that Plaintiff's Motion to Amend be DENIED and that Moving Defendants' Motion to Dismiss be GRANTED.

         I. Introduction

         On September 23, 2016, Plaintiff filed his pro se Complaint in this Court, which he states is based upon discriminatory practices, retaliation, and breach of contract. (Compl. at 1). Specifically, Plaintiff, who was a Respiratory Care student at Concord College (see Id. at 3), alleges that he was told by the Assistant Director of Clinical, Mr. Cleveland, on or about April 30, 2012 to report to the school on May 1, 2012 “to be evaluated on lab technical competencies skills.” (Id.) Although the school term was already over, Plaintiff was told by Mr. Cleveland at that meeting that he would “be given a comprehensive evaluation or a performance evaluation, ” which “consisted of a classroom evaluation and a lab evaluation.” (Id.) Plaintiff states that this “was not the correct process to be used at all.” (Id.) Plaintiff states that he filed a complaint with the Tennessee Higher Education Commission (“THEC”) from “August 2012 up until August 2013, ” which Plaintiff claims resulted in a finding that “Concord did not follow its policy” but a failure of THEC to “right the wrong.” (Id.) Subsequently, the parties engaged in arbitration. (Id.)

         Regarding the arbitration process, Plaintiff alleges that the American Arbitration Association (“AAA”) sent a letter confirming an Arbitrator on April 3, 2015, that the AAA “ended arbitration by removing the arbitrator” on July 23, 2015, and that no “substitute arbitrator was appointed an[d] no award was given.” (Id. at 2). Plaintiff alleges that a February 17, 2016 letter confirmed the final arbitration fees and concluded the authority of the arbitration without an award being issued. (Id.) On March 13, 2016, Plaintiff requested by e-mail that the AAA provide a true copy of the finding of no award for his case. (Id.) Plaintiff states that this resulted in “giving no relief to plaintiff [for his] outstanding student loans, in which Concord . . . was paid by the government.” (Id.) Plaintiff also states that Defendants made the “decision to illegally withdraw plaintiff without cause or justification.” (Id.)

         As to causes of action, Plaintiff first alleges discrimination and states that he was “wrongfully discharged causing breach of contract.” (Id.) Plaintiff does not cite any basis of law for this claim, nor does he allege either a protected class of which he is a member or that the discharge was an adverse action taken against him because he was a part of this protected class. (Id.) Instead, Plaintiff sets forth seventeen specific incidents in which he asserts he was held to standards different than other students at Concord College and was not provided the grievance process set forth in the College's Student Complaint and Grievance Procedure policies. (Id.)

         Next, Plaintiff alleges retaliation. Likewise, Plaintiff does not cite any basis of law for this claim, nor does he allege either a protected class of which he is a member or that the discharge was an adverse action taken against him because he was a part of this protected class. However, Plaintiff asserts that “Defendants administratively withdrew the Plaintiff wrongfully, and immediately sent a bill for school payment and . . . placed it on Plaintiff['s] credit report.” (Id. at 4). Plaintiff alleges that Defendants “retaliated after the plaintiff complained about the testing process . . . by breaching the contract without setting up a[n] arbitration as their own contract deems necessary . . . .” (Id.) Ultimately, for Defendants' “blatantly and knowingly” breaching the contract, retaliating, and discriminating against Plaintiff, he seeks $1, 000, 000.00 in compensatory and punitive damages, $32, 173.00 of which would cure the balance owed for his 2011 and 2012 student loans. (Id.)

         On May 25, 2017, the Moving Defendants filed their Motion to Dismiss. The Moving Defendants argue that Defendant has previously litigated this case in arbitration and that the arbitrator has issued a final award denying Plaintiff's claims. The Moving Defendants further argue that, prior to arbitration, Plaintiff submitted the same claims to THEC, a state regulatory agency, to the Commission on Accreditation for Respiratory Care (“CoARC”), a national accreditor, and to Concord College's internal grievance policy, where they were all denied. Finally, the Moving Defendants assert that Plaintiff's claims are untimely and outside of this Court's jurisdiction. In the alternative, the Moving Defendants argue that, in the event that this Court concludes that Plaintiff has any viable allegations against them, Plaintiff's claims must be submitted to arbitration for a second time.

         On June 20, 2017, Plaintiff filed his Motion to Amend. Plaintiff asserts that this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and that venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(1)-(2), (c)(1)-(2).[2] Plaintiff seeks the Court's leave to amend pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, relying on its provision that the Court “should freely give leave when justice so requires.” Id.

         Plaintiff further attached as an exhibit to his Motion to Amend his Proposed Amended Complaint. In addition to the discrimination, breach of contract, and retaliation claims, Plaintiff mentions “violation[s] of (FTC) Federal Trade Commission Regulatory Rules and Fraud, Violating Truth In Lending Act, Regulatory Z Act, [and the] Graham-Leach-Bliley Act.” (Prop. Am. Compl. at 1). In his Statement of Facts, Plaintiff proposes to add as follows:

During each and every . . . enrollment Agreement and or/ (RIC) Retail Installment Contract, year dating back to 2009, 2011, 2012, Plaintiff NEVER received NO PRIVACY NOTICES WHATSOEVER, and practicing Fraudulent Practices. Before this civil complaint Plaintiff never understood what a retail installment agreement was and was not. And that the word Buyer was a consumer term and Plaintiff was the consumer of a service and that their contract did not make it CLEAR and CONSPICUOUS.

(Id. at 2). Plaintiff's initial summary of his Cause of Action, Defendants' Discrimination, and Defendants' Retaliation remains the same. (Id. at 2-3).

         Plaintiff then proposes to include a section entitled “Defendant[s'] Violation of (FTC) Federal Trade Commission Rules and Regulations.” (Id. at 3). First, Plaintiff alleges that he was neither provided a privacy note nor did his enrollment form state that one should have been given to him with a Retail Installment Contract. (Id. at 3-4). Plaintiff further alleges that a Retail Installment Contract must also be clear and conspicuous, that the consumer must receive a preview copy, and that, as it is an extended line of credit, Federal Trade Commission rules apply. (Id. at 4). Thus, Plaintiff alleges, that Defendants violated Section 5(a) of the FTC Act, 15 U.S.C. § 45(a). (Id.) Plaintiff subsequently sets forth further allegations of these violations in Counts I-IV of his FTC Act claim, including that Defendants “used deceptive practices to sell [his] non-public information” and that they promoted “‘owner financing' guised as student loan application[s].” (Id. at 5). Plaintiff further seeks to amend his damages to add an additional $200, 000.00 “for income loss at a minimum Plaintiff could have earned if allowed to complete the Respiratory Degree Program and get degree” and an additional $1, 000, 000.00 for violation of the Federal Trade Commission Regulatory Rules. (Id. at 6).

         II. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.